un international law commission 25 july 1995

8/18/2019 UN International Law Commission 25 July 1995

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UNITEDUNITED

ANATIONSNATIONS

General Assembly Distr.LIMITED

A/CN.4/L.521

25 July 1995

Original: ENGLISH

INTERNATIONAL LAW COMMISSION

Forty-seventh session

2 May-21 July 1995

STATE RESPONSIBILITY

Draft commentaries to articles 13 and 14

of Part Two of the draft articles

GE.95-63185 (E)


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Article 13

Proportionality

Any countermeasure taken by an injured State shall not be out of

proportion to the degree of gravity of the internationally wrongful act

and the effects thereof on the injured State.

Commentary

(1) The relevance of proportionality in the regime of countermeasures

is widely recognized in both doctrine and jurisprudence. The notion of

proportionality was already present more or less explicitly in the

seventeenth, eighteenth and nineteenth century doctrine. 1/ Most twentieth

century authors, although not all of them, 2/ are of the opinion that a

State resorting to countermeasures should adhere to the principle of

proportionality. 3/

1/ This notion was clearly implied in the doctrinal position taken, for

example, by Grotius, Vattel and Phillimore, that goods seized by way of

reprisal were lawfully appropriated by the injured sovereign, "so far as

is necessary to satisfy the original debt that caused, and the expenses

incurred by the Reprisal; the residue is to be returned to the Government

of the subjects against whom reprisals have been put in force".

Sir Robert Phillimore, Commentaries upon International Law, vol. III,

(London, 1885), p. 32, Adde: Hugo Grotius, De Jure Belli Ac Pacis Libri

Tres, Book III, Chapter 2 s., viii 3, The Classics of International Law,International Peace, Division of International Law, J.B. Scott, ed.,

(Washington, 1925), p. 629; and E. De Vattel, The Law of Nations: or,

Principles of the Law of Nature, applied to the conduct and Affairs of Nations

and Sovereigns, Book Two, Chapter XVIII 342, J. Chitty, ed., (London, 1834),

p. 283.

2/ Anzilotti considered the rule of proportionality as merely a moral

norm. D. Anzilotti, Corso di diritto internazionale, vol. I, (Rome, 1928),

p. 167. Strupp did not believe in the existence of rules establishing

proportions which had to be observed in the exercise of reprisals. K. Strupp,

Das völkerrechtliche Delikt, in Stier-Somlo, Handbuch der Völkerrechts,

vol. III, (Stuttgart, 1920), Bibliotheca Visseriana, Tomus Secundus, (Leyden,1924), pp. 568-569.

3/ In this regard, Oppenheim takes the position that "[r]eprisals, be

they positive or negative, must be in proportion to the wrong done, and to

the amount of compulsion necessary to get reparation". L. Oppenheim,

International Law, vol. II, London, 1952, p. 141. In Guggenheim’s words

"[d]as moderne Völkerrecht weist sodann eine Verpflichtung zur

Proportionalität der Repressalie auf". P. Guggenheim, Traité de droit

International, vol. II, (Genève, 1954), p. 585.


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(2) The prevailing doctrinal view thus recognizes the principle

of proportionality as a general requirement for the legitimacy of

countermeasures. 4/ Proportionality is a crucial element in determining the

lawfulness of a countermeasure in the light of the inherent risk of abuse as a

result of the factual inequality of States. It takes into account situations

of inequality in terms of economic power, political power, etc., which may be

relevant in determining the type of countermeasures to be applied and their

degree of intensity. The principle of proportionality provides an effective

guarantee inasmuch as disproportionate countermeasures could give rise to

responsibility on the part of the State using such measures.

(3) The principle of proportionality has assumed a more precise content in

the present century following the First World War, a development concomitant

with the outlawing of the use of force. There is no uniformity, however, in

the practice or the doctrine as to the formulation of the principle, the

strictness or flexibility of the principle and the criteria on the basis of

which proportionality should be assessed.

(4) Article 13 lays down the rule of proportionality in providing that a

countermeasure "shall not be out of proportion" to the relevant criteria. It

adopts the "negative" formulation used, for instance, in the Naulilaa and Air

Services awards. 5/ The text does not specify the degree of proportionality

4/ The distinguished authors who share this view include: M. Bourquin,

"Règles Générales du droit de la paix", Hague Rec., vol. 35, 1931 I, p. 223;

Hans Kelsen, Principles of International Law, II ed., New York, 1966, p. 21;

G. Morelli, Nozioni di Diritto Internazionale, Padova, 1967, p. 262;

W. Wengler, Völkerrecht, I, Berlin-Goett.-Heid., 1964, p. 21; O. Schachter,

"International Law in Theory and Practice, General Course in Public

International Law", Hague Rec., vol. 178, 1982 V, pp. 9-396, p. 178;

P. Reuter, Droit international public, Paris, 1983, p. 463; I. Brownlie,

International Law and the Use of Force by States, Oxford, 1983, p. 219;

Ch. Tomuschat, Repressalie und Retorsion, Zu einigen Aspekten ihrer

innerstaatlichen Durchführung, ZaöRV, vol. 33, 1973, pp. 179-222, p. 192;

K.J. Skubiszewski, in M. Sørensen, Manual of Public International Law,

London, 1968, pp. 753-4; B. Graefrath und P. Steiniger, Kodification dervölkerrechtlichen Verantwortlichkeit, Neue Justiz, vol. 27, 1973, pp. 225-28,

article 9 (2), p. 228; D. Bowett, "Economic Coercion and Reprisals by States",

in Virg. J.I.L., 1972, vol. 13 (I), p. 10.

5/ According to the award in the Naulilaa case, "même si l’on

admettait que le droit des gens n’exige pas que la représaille se

mesure approximativement à l’offense, on devrait certainement considérer

comme excessives et partant illicites, des représailles hors de toute

proportion avec l’acte qui les a motivées", UNRIAA, vol. II, p. 1028.


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or the extent to which a countermeasure might be disproportionate. While the

assessment of the proportionality of a countermeasure must certainly involve

consideration of all elements deemed to be relevant in the specific

circumstances, the use of expressions such as "manifestly disproportionate"

could have the effect of introducing an element of uncertainty and

subjectivity in the construction and application of the principle. 6/ A

countermeasure which is disproportionate, no matter what the extent, should

be prohibited to avoid giving the injured State too much leeway that might

lead to abuse.

(5) The Commission has opted for a flexible interpretation of the principle

of proportionality. Reference to equivalence or proportionality in the narrow

sense by either the reacting State or by the State against which measures are

being taken is unusual in State practice. 7/ The task of assessing the

proportionality of the countermeasure and the corresponding wrongful act is

complicated to some extent by the fact that it requires weighing lawful

measures in relation to an unlawful act. A flexible concept of

proportionality seems to emerge from the Air Services award, according to

which "[i]t is generally agreed that all countermeasures must, in the first

instance, have some degree of equivalence with the alleged breach" and "[i]t

has been observed, generally, that judging the ’proportionality’ of

In the Air Services award the arbitrators held the United States measures tobe in conformity with the principle of proportionality because they "do not

appear to be clearly disproportionate when compared to those taken by France"

(Case Concerning the Air Services Agreement of 27 March 1946, International

Law Reports, vol. 54, 1979, p. 338). The negative formulation also appears in

section 905 (1) (b) of the Restatement of the Law Third, according to which an

injured State "may resort to countermeasures that might otherwise be unlawful,

if such measures ... (b) are not out of proportion to the violation and the

injury suffered" (American Law Institute, Restatement of the Law - The Foreign

Relations Law of the United States, St. Paul, Minn., 1987, vol. 2, p. 381.

According to draft article 9, paragraph 2, proposed by W. Riphagen, "[t]he

exercise of [the right to resort to reprisals] by the injured State shall not,

in its effects, be manifestly disproportional to the seriousness of theinternationally wrongful act committed." Sixth Report on State

Responsibility, YBILC, 1985, vol. II (Part One), draft article 9, paragraph 2.

6/ The same holds true for the expressions "hors de toute proportion"

used in the Naulilaa award and "clearly disproportionate" in the Air Services

award.

7/ G. Arangio-Ruiz, Fourth Report on State Responsibility,

document A/CN.4/444/Add.1 at paragraph 54.


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countermeasures is not an easy task and can at best be accomplished by

approximation". 8/ On the basis of this flexible concept, the arbitrators

concluded that "[t]he measures taken by the United States do not appear to

be clearly disproportionate when compared to those taken by France". 9/

(6) As regards the relevant criteria, considering the need to ensure that

the adoption of countermeasures does not lead to any inequitable results,

proportionality should be assessed taking into account not only the purely

"quantitative" element of damage caused, but also "qualitative" factors such

as the importance of the interest protected by the rule infringed and the

seriousness of the breach. Therefore, the degree of gravity 10/ and the

effects 11/ of the wrongful act should be taken into account in determining

the type and the intensity of the countermeasure to be applied. This dual

criterion is consistent with the position emerging from the 1934 International

Law Institute resolution on reprisals. 12/

8/ International Law Reports, vol. 54, pp. 338 ff.

9/ International Law Reports, vol. 54, pp. 319 ff.

10/ In the award in the Naulilaa case, the notion of proportionality

was linked to "l’acte qui ... a motivé[es]" the reprisals, UNRIAA, vol. II,

p. 1028. In the doctrine, this position is supported by P. Guggenheim,

op. cit., pp. 585-586; H. Kelsen, Principles of International Law, op. cit.,

p. 21; and S.K. Kapoor, A Textbook of International Law, Allahabad, 1985,

p. 625; and Sereni, Diritto Internazionale, vol. III, p. 1559.

11/ Reference to proportionality in relation to the damage suffered is

found in, inter alios, J.C. Venezia, "La notion de représaille en droit

international public", in RGDIP, vol. 64, 1960, p. 476; A. De Guttry,

La rappresaglie non comportanti la coercizione militare nel diritto

internazionale, Milano, 1985, p. 263; Elagab, The Legality of Non-Forcible

Countermeasures in International Law, Oxford, 1988, p. 94; L. Fisler Damrosch,

"Retaliation or arbitration - or both? The 1978 U.S.-France aviation

dispute", in AJIL, 1980, p. 796; K. Zemanek, The Unilateral Enforcement of

International Obligations, in ZaöRV, vol. 47, 1987, p. 87; and in the reports

of two previous Special Rapporteurs, Ago (in YBILC, 1979, vol. II (Part One),

para. 82) and Riphagen (in his draft art. 9, para. 2 and comment thereto).

12/ The position of the International Law Institute (ILI) seems to

require that the measure be proportional to the gravity of the offence and to

the damage suffered. According to the resolution of the ILI, the acting State

must "proportionner la contrainte employée à la gravité de l’acte dénoncé

comme illicite et à l’importance du dommage subi" (art. 6, para. 2, in

Yearbook ILI, vol. 38, 1934, p. 709). See the more recent award in the

Air Services case in which the arbitrators held that "it is essential, in a


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(7) The rule of proportionality set forth in article 13 requires that a

specific countermeasure be proportional first to the degree of gravity of the

wrongful act and second, to the effects of that wrongful act on the injured

State. The use of the word "degree" in the formulation of the first criterion

indicates that the text encompasses wrongful acts of varying degrees of

gravity. It would be insufficient, however, to limit the test of

proportionality to a simple comparison between the countermeasure and the

wrongful act because the effects of a wrongful act on the injured State are

not necessarily in proportion to the degree of gravity of the wrongful act.

(8) The requirement that a countermeasure should also be proportional to the

effects of the wrongful act on the injured State should not be restrictively

interpreted to rule out the taking of countermeasures against a State

violating the human rights of its nationals on the ground that such violation

did not entail material damage to the injured State. Such an interpretation

could have a negative effect on the development and enforcement of human

rights law and would not be consistent with the broad concept of injury

adopted by the Commission in article 5.

(9) The concluding phrase "on the injured State" is not intended to narrow

the scope of the article and unduly restrict a State’s ability to take

effective countermeasures in respect of certain wrongful acts involving

obligations erga omnes, in particular violations of human rights. At the same

time, a legally injured State, as compared to a materially injured State,

would be more limited in its choice of the type and the intensity of measures

that would be proportional to the legal injury it has suffered.

(10) Proportionality is concerned with the relationship between the alleged

wrongful act and the countermeasure. It is not to be measured, therefore, on

the basis of the aptness of the reaction to attain a particular aim. The

purpose of countermeasures, namely to induce the wrongdoing State to comply

with its obligations under articles 6 to 10 bis, could be of relevance in

deciding whether and to what extent a countermeasure is lawful. This issue,

however, is different from that of proportionality and is addressed in

article 11.

dispute between States, to take into account not only the injuries suffered by

the companies concerned but also the importance of the questions of principle

arising from the alleged breach" (International Law Reports, vol. 54, 1979,

p. 338). See also the proposal made by the previous Special Rapporteur

(art. 9, para. 2), op. cit; and the Restatement of the Law Third, op. cit.,

section 905 (1) (b).


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Article 14

Prohibited countermeasures

An injured State shall not resort, by way of countermeasure, to:

(a) the threat or use of force as prohibited by the Charter of theUnited Nations;

(b) extreme economic or political coercion designed to endanger

the territorial integrity or political independence of the State which

has committed an internationally wrongful act;

(c) any conduct which infringes the inviolability of diplomatic or

consular agents, premises, archives and documents;

(d) any conduct which derogates from basic human rights; or

(e) any other conduct in contravention of a peremptory norm ofgeneral international law.

Commentary

(1) As indicated in the introductory phrase of article 14, an injured State

is precluded from resorting to certain types of conduct by way of

countermeasures. The notion of prohibited countermeasures is the result of

the continuing validity of certain general restrictions on the freedom of

States notwithstanding the special character of the relationship between the

injured State and the wrongdoing State. Subparagraphs (a) to (e) identify the

broad areas where non-compliance with applicable norms by way of

countermeasures is impermissible and circumscribe the limitations on the

measures available to an injured State with respect to each of these areas.

Although some of the prohibited countermeasures addressed in subparagraphs (a)

to (d) are covered by peremptory norms referred to in subparagraph (e), it was

considered preferable to deal with them separately in view of the importance

acquired, in particular, in contemporary international society by the

prohibition of the use of force and the protection of human rights.

(2) Subparagraph (a) prohibits resort, by way of countermeasures, to the

threat or use of force. The trend towards the restriction of resort to armed

reprisals, which had already emerged before the Covenant of the League of

Nations and the Briand-Kellogg Pact, may be considered to have attained the

level of conventional law with the entry into force of these two "anti-war"

treaties. Notwithstanding some ambiguities in the relevant rules -

particularly in the Covenant - those two treaties may be reasonably


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interpreted as restricting, in the first instance, 13/ and forbidding, in

the second instance, 14/ resort to "forcible measures short of war" prior

to the exhaustion of peaceful means of redress. This construction of the

combined effect of the provisions of the two treaties concerning the

prohibition of force, on the one hand, and the obligation to attempt a

peaceful settlement, on the other, is confirmed by State practice during the

period between the two world wars. 15/

13/ Although not explicitly referring to measures short of war, the

Covenant specifically condemned resort to war in the following circumstances:

(a) prior to the use of one of the peaceful means of dispute settlement

envisaged in the Covenant; (b) during the three months following an arbitral

award or a judgment of the PCIJ or a report of the League Council (art. 12);

(c) against the member State abiding by the arbitral or Court decision

(art. 13); (d) against any State abiding by a unanimous report of the Councilor a qualified majority report of the Assembly (art. 15). A number of

authorities held the view that the prohibition of war in those circumstances

included the prohibition of military measures "short of war". See, for

example, J. Brierly, "Règles générales du droit de la paix", Hague Rec.,

1936-IV, p. 124, and, for a survey of opinions, I. Brownlie, International Law

and The Use of Force, Oxford 1963, pp. 220 ff. This position also apparently

found some support in the cited opinion of the Committee of Jurists consulted

by the League following the Janina (Tellini) case, where the admissibility of

forcible measures short of war was made conditional upon a decision of the

Council (in the light of arts. 13-15 of the Covenant).

14/ The Briand-Kellogg Pact condemned war in article 1 and in article 2

and prescribed the settlement of disputes by peaceful means (LNTS, vol. 94,1929, pp. 59-64).

15/ In contrast with the previous period, States resorting to armed

measures declared that they were acting in self-defence. See I. Brownlie,

International Law and the Use of Force, op. cit., pp. 19 ff.; P. Lamberti

Zanardi, La legittima difesa nel diritto internazionale, Milan 1972,

pp. 39 ff., and p. 87. Furthermore, the resort to force was also condemned,

albeit as "forcible intervention", in the American hemisphere, for example in

the "Saavedra Lamas" Treaty of 1933. While article 1 of that Treaty provided

"that the settlement of disputes or controversies of any kind that may arise

among them shall be effected only by the pacific means which have the sanction

of international law", article 3 specified that "in no case shall [theContracting Parties] resort to intervention, either diplomatic or armed".

(United Nations Systematic Survey of Treaties for the Pacific Settlement of

International Disputes, 1928-1948, p. 1039). The Declaration of the Eighth

Conference of American States in Lima (1938) is also very clear in reiterating

the unlawfulness of all use of force, including armed reprisals. It states

"once again" that "All differences of an international character should be

settled by peaceful means" and that "the use of force as an instrument of

national or international policy is proscribed" (text in AJIL, vol. 34,

1940, Supp., pp. 197-201). On the parallelism of these developments

(mutatis mutandis) with the European anti-war trend, see G. Arangio-Ruiz,

"The Normative Role of the General Assembly and the Declaration of Friendly

Relations, Hague Rec., vol. 137, 1972-III, pp. 547 ff.


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(3) At the end of the Second World War, the trend towards restricting the

resort to force culminated in the express prohibition of the use of force

contained in Article 2, paragraph 4 of the United Nations Charter. The

relevance of this prohibition to the use of force by an injured State in the

pursuit of its rights is consistent with the intention of the framers of the

Charter. 16/ The prohibition of armed reprisals or countermeasures as a

consequence of Article 2, paragraph 4 of the Charter is spelled out in the

Friendly Relations Declaration, by which the United Nations General Assembly

unanimously proclaimed that "States have a duty to refrain from acts of

reprisal involving the use of force". 17/ Furthermore, the prohibition of

armed reprisals or countermeasures is also implicitly confirmed by the

General Assembly resolution concerning the Definition of Aggression, where it

is specified that "[n]o consideration of whatever nature, whether political,

economic, military or otherwise, may serve as a justification for aggression". 18/

16/ The framers of the Charter intended to condemn the use of force even

if resorted to in the pursuit of one’s rights, as reflected in the proceedings

of the San Francisco Conference. See, P. Lamberti Zanardi, La legittima

difesa, cit., pp. 143 ff., and R. Taoka, The Right of Self-defence in

International Law, (Osaka, 1978), pp. 105 ff.

17/ General Assembly resolution 2625 (XXV) of 24 October 1970,paragraph 6 of the first principle. R. Rosenstock, "The Declaration of

Principles of International Law concerning Friendly Relations: A Survey", in

AJIL, vol. 65, 1971, pp. 713 ff., p. 726. The International Court of Justice

indirectly condemned armed reprisals in asserting the customary nature of the

Declaration’s provisions condemning the use of force in the Military and

Paramilitary Activities in and against Nicaragua case (ICJ Reports, 1986,

paras. 188, 190, 191, pp. 89-91). The Helsinki Final Act of 1 August 1975

also contains an explicit condemnation of forcible measures. Part of

Principle II of the Declaration of Principles embodied in the first "Basket"

of that Final Act reads: "Likewise they [the participating States] will also

refrain in their mutual relations from any act of reprisal by force" (Text in

L. Sohn, ed., International Organisation and Integration, II, D, 1.a.i,

The Hague/Boston/London, 1983, p. 3).

18/ Article 5.1 of the Definition of Aggression (General Assembly

resolution 3314 (XXIX) of 14 December 1974). This position is reiterated by

the General Assembly in the more recent Declaration on the Enhancement of the

Effectiveness of the Principle of Refraining from the Threat or Use of Force

in International Relations according to which "[n]o consideration of whatever

nature may be invoked to warrant resorting to the threat or use of force in

violation of the Charter" (General Assembly resolution 42/22 of

18 November 1987, Annex, Sect. I, No. 3).


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Thus, not even a legal consideration, such as the one relating to the pursuit

or protection of one’s rights, would justify resort to one of the actions

referred to in article 3 of the Definition. 19/

(4) That armed reprisals are recognized as prohibited is further evidenced by

the fact that States resorting to force attempt to demonstrate the lawfulness

of their conduct by characterizing it as an act of self-defence rather than as

a reprisal. Since, however, such pleas of self-defence concern reactions to

allegedly serious violations of international law involving the use of force

(i.e. conduct to be characterized as a crime under article 19 of the present

draft), the Commission will refrain from further consideration of this

question in this context and will revert to it at a later stage in

considering the consequences of international crimes.

(5) The prohibition of armed reprisals or countermeasures as a

consequence of article 2, paragraph 4 of the Charter is also consistent

with the decidedly prevailing doctrinal view, 20/ although not all of

19/ Article 3 of the Definition of Aggression lists the forms of

aggression, namely: invasion or attack by the armed forces of a State of the

territory of another State, bombardment, blockade of the ports or coasts,

attack on military forces of another State, the use of armed forces of one

State which are in the territory of another State, without the consent of the

latter, the action of a State allowing its territory, which it has placed at

the disposal of another State, to be used by that other State for perpetrating

an act of aggression against a third State, the sending by or on behalf of aState of armed bands, groups, irregulars or mercenaries, which carry out acts

of armed force against another State of such gravity as to amount to the acts

listed above.

20/ The contemporary doctrine is almost unanimous in characterizing the

prohibition of armed reprisals as having acquired the status of a general or

customary rule of international law. See I. Brownlie, International Law and

the Use of Force by States (Oxford, 1963), pp. 110 ff. and pp. 281-282;

P. Reuter, Droit international public (Paris, 1983), pp. 510 ff. and in

particular pp. 517-518; A. Cassese, Il diritto internazionale nel mondo

contemporaneo (Bologna, 1984), p. 160; H. Thierry, J. Combacau, S. Sur,

Ch. Valle’e, Droit international public (Paris, 1986), pp. 192, 493 ff.,

particularly p. 508; B. Conforti, Diritto internazionale (Napoli, 1987),

p. 356; Ch. Dominicé, "Observations sur les droits de l’Etat victime d’un fait

internationalement illicite", in Droit international 2 (Paris, 1981-1982),

p. 62; F. Lattanzi, Garanzie dei diritti dell’uomo nel diritto internazionale

generale (Milan, 1983), pp. 273-279; J.C. Venezia, "La notion de représaille

en droit international public", in RGDIP, vol. 64, 1960, pp. 465 ff. p. 494;

J. Salmon, "Les circonstances excluant l’illicéité", in Responsabilité

internationale, Paris, 1987-1988, p. 186; W. Riphagen, Fourth Report on State

Responsibility, YBILC, vol. II, (Part One) 1983, p. 15, para. 81. The

minority who doubt the customary nature of the prohibition are equally firm in


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them, 21/ as well as a number of authoritative pronouncements of

recognizing the presence of a unanimous condemnation of armed reprisals in

Article 2 (4) of the Charter as reaffirmed in the Friendly Relations

Declaration. See, for example, J. Kunz, "Sanctions in International Law", in

AJIL, vol. 54, 1960, pp. 325 ff; G. Morelli, Nozioni di diritto

internazionale, Padova, 1967, pp. 352 and 361 ff.; G. Arangio-Ruiz, "The

Normative Role for the General Assembly of the United Nations and the

Declaration of Principles of Friendly Relations", in Hague Rec., vol. 137,

1972-III, p. 536. It is also significant that the majority of the recent

monographic studies on reprisals are expressly confined to measures not

involving the use of force. See, in particular, A. De Guttry, La rappresaglie

non comportanti la coercizione militare nel diritto internazionale, Milano,

1985; E. Zoller, Peacetime Unilateral Remedies: An Analysis of

Countermeasures, Dobbs Ferry, New York, 1984; and O.Y. Elagab, The Legality of

Non-Forcible Countermeasures in International Law, Oxford, 1988. These

authors obviously assume that "the prohibition to resort to reprisals

involving armed force had acquired the rank status of a rule of generalinternational law" (A. De Guttry, op. cit., p. 11). See also the Third

Restatement of the Law of Foreign Relations of the United States, Section 905

of which states that "[t]he threat or use of force in response to a violation

of international law is subject to prohibitions on the threat or use of force

in the United Nations Charter, as well to Subsection (1)". The subsection in

question specifies that "a State victim of a violation of an international

obligation by another State may resort to countermeasures that might otherwise

be unlawful, if such measures (a) are necessary to terminate the violation or

prevent further violation, or to remedy the violation; and (b) are not out of

proportion to the violation and the injury suffered" (American Law Institute,

Restatement of the Law Third: The Foreign Relations Law of the United States,

St. Paul, Minn. 1987, vol. 2, p. 380).

21/ The dissenting authors are of the view that some forms of unilateral

resort to force either have survived the sweeping prohibition of Article 2,

paragraph 4, to the extent that they are not used against the territorial

integrity or political independence of any State or contrary to the purposes

of the United Nations but rather to restore an injured State’s rights, or have

become a justifiable reaction under the concepts of armed reprisals or

self-defence based on the realities of persistent State practice and the

failure of the collective security system established by the Charter to

function as envisaged in practice. E.S. Colbert, Retaliation in International

Law, New York, 1948; J. Stone, Aggression and World Order. A Critic of

United Nations Theories of Aggression, London, 1958, especially pp. 92 ff.;

R.A. Falk, "The Beirut Raid and International Law of Retaliation", AJIL,

vol. 63, 1969, pp. 415-443; D.W. Bowett, "Reprisals Involving Recourse to

Armed Force", in AJIL, vol. 66, 1972, pp. 1-36; R.W. Tucker, "Reprisals and

Self-Defence: The Customary Law", AJIL, vol. 66, 1972, pp. 586-596;

R. Lillich, "Forcible Self-Help under International Law", in 62 United States

War College - International Studies (1980), Readings in International Law from

the Naval War College Review 1947-1977 (R. Lillich and Moore, eds.), vol. II:

The Use of Force, Human Rights and General International Legal Issues;

D. Levenfeld, "Israeli Counter Fedayeen Tactics in Lebanon: Self-Defense and

Reprisal under Modern International Law", Columbia Journal of Transnational


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international judicial 22/ and political bodies. 23/ This prohibition

has acquired the status of a general or customary rule of international law

according to the prevailing view in the literature which is consistent with

international jurisprudence.

(6) The prohibition of the threat or use of force by way of countermeasures

is set forth in subparagraph (a). This prohibition is defined in terms of a

general reference to the Charter. The Commission was of the view that a

specific reference to Article 2, paragraph 4 would not accurately reflect the

scope of the prohibition of the threat or use of force since the Charter

permits the use of force as authorized by the United Nations as well as in the

exercise of the right of individual or collective self-defence. While those

exceptions would only come into play in relation to delinquencies qualified as

crimes under article 19 of Part One of the draft and might therefore not be

relevant in the present context, it was generally agreed that merely referring

to Article 2, paragraph 4 of the Charter would incorrectly reflect the content

of the Charter prohibition of the threat or use of force. Furthermore, the

Commission opted for a general reference to the Charter as one source, but not

the exclusive source, of the prohibition in question which is also part of

general international law and has been characterized by the International

Court of Justice as a norm of customary international law.

(7) Subparagraph (b) restricts the extent to which an injured State may

resort to economic or political coercion by way of countermeasures. A great

variety of forms of economic or political measures are frequently resorted to

and are considered admissible as countermeasures against internationally

Law, vol. 21, 1982, p. 148; Y. Dinstein, War, Aggression and Self-Defence,

Cambridge, 1988, pp. 202 ff. For a critical review of the literature, see

R. Barsotti, "Armed Reprisals", in A. Cassese, ed., The Current Legal

Regulation of the Use of Force, Dordrecht, Boston, Lancaster, 1986, pp. 81 ff.

22/ The condemnation of armed reprisals and the consolidation of the

prohibition into a general rule are supported by the statement of the

International Court of Justice in the Corfu Channel case with respect to the

recovering of the mines from the Corfu Channel by the British navy ("Operation

Retail") (ICJ Reports 1949, p. 35, see also YBILC, 1979, vol. II (Part One),

para. 89) and, more recently, by the decision of the Court in the Military and

Paramilitary Activities in and against Nicaragua case (ICJ Reports 1986,

paras. 248-249, p. 127).

23/ See, for example, Security Council resolution 3538 (1956),

resolution 5111 (1962) and resolution 188 (1964).


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wrongful acts. 24/ Their admissibility, however, is not totally exempt

from restriction since extreme economic or political measures may have

consequences as serious as those arising from the use of armed force.

(8) There are divergent views in the literature concerning the possible

relevance of the condemnation of the use of force, under Article 2,

paragraph 4 of the Charter or general international law, in determining the

lawfulness of economic or political coercion as a form of countermeasure.

According to the most widely accepted interpretation, the prohibition of the

use of force is limited to military force and, therefore, objectionable forms

of economic or political coercion could only be condemned under a distinct

rule prohibiting intervention or particular forms thereof. 25/ Noting the

absence of any other Charter provision condemning individual coercive

24/ The admissibility of economic countermeasures is recognized by the

Commission in the commentary to article 30 of the first part of the present

draft in stating "that modern international law does not normally place any

obstacles of principle in the way of the application of certain forms of

reaction to an internationally wrongful act" (economic reprisals, for

example). (YBILC, 1979, vol. II (Part Two), p. 116, para. 5.)

25/ According to this interpretation, the prohibition contained in

Article 2, paragraph 4 should be logically understood to "embrace also

measures of economic or political pressure applied either to such extent and

with such intensity as to be an equivalent of an armed aggression or, in any

case - failing such an extreme - in order to force the will of the victimState and secure undue advantages" for the acting State. G. Arangio-Ruiz,

"Human Rights and Non-Intervention in the Helsinki Final Act", in Hague Rec.,

vol. 157, 1977-IV, p. 267. A similar position is taken by A. Cassese, Diritto

internazionale, op. cit., p. 163. Cfr. H. Waldock, "The Regulation of the use

of Force by Individual States in International Law", Hague Rec., vol. 81,

1952-II, pp. 493-4; L. Oppenheim, International Law, vol. II, London, 1952,

p. 153; D.W. Bowett, "Economic Coercion and Reprisals by States", Virg. JIL,

vol. 13, 1972, p. 1; R. Lillich, "The Status of Economic Coercion Under

International Law: United Nations Norms", in R. Mersky ed., Conference on

Transnational Economic Boycotts and Coercion, 19-20 February 1976, University

of Texas Law School, vol. I, pp. 116-17; A. Beirlaen, "Economic Coercion and

Justifying Circumstances", RBDI, vol. 18, 1984-5, p. 67; M. Virally,

"Commentaire de l’article 2 par. 4 de la Charte", in J.P. Cot, A. Pellet,

eds., La Charte des Nations Unies, Paris, Bruxelles, 1985, pp. 120-21;

C. Leben, "Les contre-mesures inter-étatiques et les réactions à l’illicite

dans la société internationale", in AFDI, vol. 28, 1982, pp. 63-69;

P. Malanczuk, "Countermeasures and Self-Defence as Circumstances Precluding

Wrongfulness in the ILC’s Draft Articles on State Responsibility", in ZaöRV,

vol. 43, 1983, p. 737; O.Y. Elagab, op. cit., p. 201; I. Seidl-Hohenveldern,

"International Economic Law", Hague Rec., vol. 198, 1986-III, pp. 200-1,

Restatement of Law Third, op. cit., p. 383; L.A. Sicilianos, op. cit.,

pp. 248-253.


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measures, some authors maintain that Article 2, paragraph 4 applies not only

to armed reprisals but also to economic coercion measures. 26/ In their

view, such measures do not differ in aim or result from the resort to armed

force when the consequences of those measures are in effect the economic

"strangulation" of the target State.

(9) The consideration of relevant State practice is particularly important in

light of the divergent doctrinal views. During the San Francisco Conference

the Latin American States put forward a proposal to extend the condemnation

contained in Article 2, paragraph 4 of the Charter to the use of economic or

political force. 27/ The defeat of this proposal may have been due to the

broad definition of economic or political force rather than categorical

opposition to any prohibition of actions of this nature. More recently, there

were unsuccessful attempts to link a condemnation of economic or political

coercion to the prohibition of the threat or use of force in the context of

both the Friendly Relations Declaration and the resolution on the Definition

of Aggression. 28/

26/ See, in particular, J. Zourek, "La Charte des Nations Unies

interdit-elle le recours à la force en général ou seulement à la force

armée?", in Mélanges Rolin, Paris, 1964, pp. 530 ff.; and M. Obradovic,

"Prohibition of the Threat or Use of Force", in M. Sahovic, ed., Principles of

International Law Concerning Friendly Relations and Cooperation, Belgrade,

New York, 1972, pp. 76 ff. Following the Arab oil embargo of 1973, thisposition was also supported by some Western authors. In this regard, see

J.J. Paust, A.P. Blaustein, "The Arab Oil Weapon - A Threat to International

Peace", in AJIL, vol. 68, 1974, pp. 420 ff.

27/ See Documents of the United Nations Conference on International

Organization, San Francisco, 1945, London-New York, 1945, vol. 6, p. 559 for

the text of the amendment proposed by Brazil, and pp. 334, 339-340 for the

discussion in the Committee I/1 on 5 June 1945.

28/ General Assembly resolution 3314 (XXIX) (1974). Some countries

attempted to achieve this link during the lengthy negotiations concerning the

definition of aggression. See the proposal put forward by Bolivia according

to which "unilateral action whereby a State is deprived of its economic

resources derived from the proper conduct of international trade or its basic

economy is endangered so that its security is affected and it is unable to act

in its own defence or to cooperate in the collective defence of peace" should

have been considered a form of aggression (document A/AC.66/L.9 (1953)). Here

again the Western States opposed an express provision on economic coercion

mainly due to the extremely flexible formulation proposed. Statement by

Fitzmaurice, in GAOR, seventh session, annexes, agenda item 54, p. 74. See

also the more recent statement of El Salvador expressing dissatisfaction with

the proposed definition of aggression for its failure to include indirect


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(10) Although State practice does not appear to warrant the conclusion that

certain forms of economic or political coercion are equivalent to forms of

armed aggression, this practice reveals a separate and distinct trend

restricting the extent to which States may resort to economic or political

measures. 29/ The General Assembly clearly condemns not only armed

intervention but also "all other forms of interference or attempted threats

against the personality of the State or against its political, economic and

cultural elements" in its Declaration on the Inadmissibility of Intervention

in the Domestic Affairs of States and the Protection of Their Independence and

Sovereignty. 30/ The Declaration further provides that "No State may use

or encourage the use of economic, political or any type of measures to coerce

another State to obtain from it the subordination of the exercise of its

sovereign rights or to secure from it advantages of any kind". Similarly, the

Friendly Relations Declaration proclaims that "[n]o State may use or encourage

the use of economical, political or any other type of measure to coerce

another State in order to obtain from it the subordination of the exercise of

its sovereign rights and to secure from it advantages of any kind". 31/

(11) State practice at the regional level also provides support for the

prohibition of extreme economic or political coercion. The 1948 Bogota

economic aggression. Official Records of the General Assembly, Twenty-ninth

Session, Plenary Meetings, vol. I, 2239th meeting, para. 157. The Special

Committee on the definition declared that a provision in that sense would have

been an obstacle to the adoption of the resolution by consensus.

29/ See G. Arangio-Ruiz, "Human Rights and Non-Intervention in the

Helsinki Final Act", in Hague Rec., vol. 157, 1977-IV, p. 267; D.W. Bowett,

op. cit., in Virg. JIL, vol. 13, 1972, pp. 2-3; Y. Blum, "Economic Boycotts in

International Law", in Conference on Transnational Economic Boycotts,

op. cit., p. 96; P. Malanczuk, op. cit., p. 737; A. Bierlaen, op. cit., p. 67;

I. Seidl-Hohenveldern, "The United Nations Economic Coercion", in RBDI,

vol. 18, 1984-5, p. 11; and J. Salmon, op. cit., p. 186. See also, L. Boisson

de Chazournes, Les contre-mesures dans les relations internationales

économiques, Thèse présentée à l’Université de Genève, 1990, Chapter III,

Part A, Section 3, para. 3.2, pp. 149-151.

30/ General Assembly resolution 2131 (XX) of 21 December 1965 adopted by

a vote of 109 in favour and 1 abstention, the relevant provisions of which

were later incorporated in the Friendly Relations Declaration.

31/ General Assembly resolution 2625 (XXV) of 24 October 1970.


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Charter establishing the Organization of American States contains a broad

formulation of the principle of non-intervention 32/ and expressly

prohibits "the use of coercive measures of an economic or political character

in order to force the sovereign will of another State and obtain from it

advantages of any kind." 33/ A similar prohibition is contained in another

significant, although non-binding, regional instrument, the Helsinki Final Act

of 1975, under the specific title of non-intervention. 34/

(12) All of these international and regional instruments condemn resort to

economic or political coercion when it infringes the principle of

non-intervention. Thus, there appear to be different regimes prohibiting the

use of force, on the one hand, and the use of extreme economic or political

coercion, on the other, by way of countermeasures. 35/ In contrast with

the general prohibition of armed countermeasures in any circumstances, the

prohibition against economic or political coercion is limited to those

measures that are aimed at unacceptable ends such as the subordination of the

exercise of the sovereign rights of the target State or securing advantages of

any kind. Therefore, the condemnation of coercive measures, other than those

32/ According to the principle of non-intervention set forth inarticle 15, there is no "right to intervene, directly or indirectly, for any

reason whatever, in the internal or external affairs of any other State." It

is further stated that this principle "prohibits not only armed force but also

any other form of interference or attempted threat against the personality of

the State or against its political, economic and cultural elements." For a

bibliography on the principle of non-intervention in the Americas, see

Ch. Rousseau, Droit international public, vol. IV, Paris, 1980, pp. 53 ff.

33/ Article 16 (UNTS, vol. 119, p. 3).

34/ According to principle VI, all States will "in all circumstances

refrain from any other act of military, or political, economic or other

coercion designed to subordinate to their own interest the exercise by another

participating State of the rights inherent in its sovereignty and thus to

secure advantages of any kind". See G. Arangio-Ruiz, Human Rights and

Non-Intervention, cit., pp. 274 ff.

35/ This is consistent with the jurisprudence of the International Court

of Justice which recognized the unlawfulness of economic measures in the

context of the principle of non-intervention in the case concerning Military

and Paramilitary Activities in and against Nicaragua (I.C.J. Reports, 1986,

pp. 108 ff., para. 126).


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involving the threat of use of force, only extends to measures of an economic

or political nature which are likely to result in very serious if not

disastrous consequences for the State concerned. 36/

(13) That the seriousness of the potential consequences of the non-forcible

coercive measures should be taken into account in determining their prohibited

character is confirmed by other elements of State practice. In the numerous

cases in which economic measures have been resorted to, the complaints of the

targeted States have been based not so much on the nature of the act per se

but rather on the resulting "economic strangulation" or other catastrophic

effects. This was the position taken by Bolivia with regard to the sea

dumping of tin by the Soviet Union in 1958 37/ and by Cuba with regard to

the drastic reduction of United States sugar imports in 1960, 38/ cases

which did not however involve countermeasures in a strict sense. 39/ Some

Latin American countries, including Argentina, 40/ alleged before the

Security Council that the trade sanctions resorted to by Western countries

36/ These consequences are not necessarily different from those that may

occur as a result of the unlawful use of force. This has led some authors to

question the distinction between the two prohibitions in a meaningful and

practical sense. For a discussion of this question in relation to the

Friendly Relations Declaration, see G. Arangio-Ruiz, The Normative Role of the

General Assembly, op. cit., pp. 528-530.

37/ See McDougal-Feliciano, Law and Minimum World Public Order - TheLegal Regulation of International Coercion, New Haven and London, 1961,

p. 194, note 165.

38/ Cuba qualified this action as a "constant aggression for political

purposes against the fundamental interests of the Cuban economy". AJIL,

vol. 55, 1961, pp. 822 ff.

39/ It is not clear whether the State adopting the measure was reacting

against a prior unlawful act. However, even if a prior unlawful act was

missing, the statements referred to appear to be relevant, because they

highlight the conditions under which the use of economic force is considered

unlawful. One must bear in mind that in economic matters the line between

retortion and reprisal is not always clear since the rights and duties are

usually conventional and their interpretation is often debated.

40/ According to Argentina, the measures adopted by the EEC would amount

to an economic aggression openly violating the principles of international law

and the law of the United Nations. See A. De Guttry, Le contromisure adottate

nei confronti dall’Argentina da parte della Comunità europee a dei terzi Stati

ed il problema della loro liceità internazionale, in N. Ronzitti (ed.),

La questione delle Falkland-Malvinas nel diritto internazionale, Milan, 1984,

p. 357.


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following the outbreak of the Falkland/Malvinas crisis qualified as acts of

"economic aggression carried out in blatant violation of international

law". 41/ The Soviet Union accused the United States of "using trade as a

weapon against our country" with regard to the measures adopted following the

Polish crisis in 1981-1982. 42/ In this case the United States, which

traditionally opposes a broad interpretation of Article 2, paragraph 4,

maintained that it was not seeking "to bring the Soviet Union to its knees

economically" 43/ and further declared during the debates in the Special

Committee on Enhancing the Effectiveness of the Principle of Non-Use of Force

in International Relations that the pressure exercised by the Soviet Union on

Poland, which led to the declaration of martial law in the latter country, was

tantamount to an unlawful resort to force. 44/ Some States have also

characterized the measures adopted by South Africa towards neighbouring

countries purportedly for giving shelter to African National Congress members

as unlawful economic coercion used to influence another country’s

conduct. 45/

(14) The prohibition of economic or political coercion by way of

countermeasures contained in subparagraph (b) is based on the extreme nature

of the measures as determined by the seriousness of their potential

consequences in terms of endangering "the territorial integrity or political

independence" of the State concerned. By incorporating this phrase taken from

Article 2, paragraph 4, of the Charter, the Commission recognizes that

forcible and non-forcible measures may have equally serious effects, while

avoiding the controversial question of whether that provision of the Charter

41/ Statement by Venezuela, in S/PV.2362, 22 May 1982, pp. 23-25; see

also the statements by El Salvador, in S/PV.2363, 23 May 1982, p. 47;

Nicaragua, ibid.; Ecuador, in S/PV.2360, 21 May 1982, p. 71.

42/ Statement of the USSR Minister of Foreign Trade, in

Financial Times, 17 November 1982, p. 1.

43/ Statement by Thomas N.T. Niles, Deputy Assistant Secretary, in

Hearing before the Subcommittee on Europe and the Middle East of the Committee

on Foreign Affairs, House of Representatives, 97th Congress, Second session,

10 August 1982, Washington, 1982, p. 8.

44/ Document A/37/41, para. 50.

45/ See the statements of Yugoslavia, Madagascar and Thailand, in

S/PV.2660, 12 February 1986, pp. 13 ff., 28 ff., 38 ff.


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should be interpreted as referring only to the use of armed force or as

encompassing other forms of unlawful coercion. The Commission is aware

that if formulated too broadly, subparagraph (b) might amount to a

quasi-prohibition of countermeasures. It has therefore narrowed the scope of

the text first by limiting prohibited conduct to "extreme economic or

political coercion" and second by using the term "designed" which connotes a

hostile or punitive intent and excludes conduct capable of remotely and

unintentionally endangering the territorial integrity or political

independence of the State.

(15) Subparagraph (c) limits the extent to which an injured State may resort,

by way of countermeasures, to conduct that is contrary to diplomatic or

consular law. While an injured State may resort to countermeasures affecting

its diplomatic relations with the wrongdoing State, including declarations of

persona non grata, the termination or suspension of diplomatic relations and

the recalling of ambassadors, not all forms of countermeasures relating to

diplomatic law or affecting diplomatic relations are considered unlawful.

(16) The sphere of prohibited countermeasures extends to those rules of

diplomatic law which are designed to guarantee the physical safety and

inviolability of diplomatic agents, premises, archives and documents in all

circumstances, including armed conflict. 46/ This minimum guarantee of

protection is essential to the communication and interaction between States in

times of crisis as well as under normal conditions. In situations involving

an unlawful act, which are by definition conflictual in nature, it is

particularly important to preserve the channels of diplomacy, on the one hand,

and to protect highly vulnerable persons and premises from countermeasures, on

the other.

(17) While the State practice concerning the restrictions on the ability of an

injured State to derogate by way of countermeasures from obligations affecting

46/ See, for example, articles 22, 24, 29, 44 and 45, Vienna Convention

on Diplomatic Relations (UNTS, vol. 500, p. 95). De Guttry is of the view

that the unlawfulness of reprisals against diplomatic envoys covers

essentially measures directed against the physical persons of diplomats, such

measures consisting essentially but not exclusively, in a breach of the rule

of personal inviolability. In his view, the raison d’être of the restriction

is the necessity to safeguard, in any circumstances, the special protection

which is reserved to diplomatic envoys in view of the particular tasks they

perform (op. cit., pp. 282-283).


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the treatment of diplomatic envoys is relatively scarce, 47/ there is

widespread support in the doctrine for the prohibition of reprisals or

countermeasures against persons enjoying protection as a matter of diplomatic

law. 48/ While some authors believe that this prohibition is derived from

the primary rules concerning the protection of diplomatic envoys which they

characterize as peremptory norms, 49/ others find its basis in the

47/ For example, in 1966 Ghana arrested the members of the delegation of

Guinea to the OAU Conference, including the Foreign Minister. The arrest,

which took place on board an aircraft of an American airline in transit at

Accra, was justified by the Government of Ghana as a means to secure

reparation for a number of wrongful acts committed by Guinea, including a raid

on the premises of the Ghanaian Embassy at Conakry and the arrest of the

Ambassador with his wife (Keesing’s, op. cit., pp. 21738-40). Another example

is the arrest by Ivory Coast authorities, in 1967, of the Foreign Minister

during a forced interruption of their flight to Guinea. The Ivory Coast

Foreign Minister stated that "This arrest ... is a consequence of the

arbitrary detention of several Ivory Coast nationals in the Republic of

Guinea, and the Ivory Coast keenly regrets being obliged ... to detain the

group of Guineans on Ivory Coast soil until the release of Ivory Coast

nationals". SCOR, 22nd year, Supp. for July-August and September 1967,

annex IV, p. 176.

48/ For example, Oppenheim states that "Individuals enjoying the

privilege of extraterritoriality while abroad such as heads of States and

diplomatic envoys, may not be made the object of reprisals, although this has

occasionally been done in practice". L. Oppenheim, International law,

vol. II, 7th edition, op. cit., p. 140. This opinion was expressed byHugo Grotius, De Jure Belli Ac Pacis Libri II, The Classics of International

Law, J.B. Scott ed., Washington, 1925, chap. 18, S.iii, S.viii. According to

Twiss, diplomatic agents "cannot be the subjects of reprisals, either in their

persons or in their property, on the part of the Nation which has received

them in character of envoys (legati), for they have entrusted themselves and

their property in good faith to its protection (T. Twiss, The Law of Nations

considered as Independent Political Communities, London and Oxford, 1963,

p. 39). See also Ph. Cahier, Le droit diplomatique contemporain, Genève,

1962, p. 22; Ch. Tomuschat, "Zu einige Aspekten ihrer innerstaatlichen

Durchfürung", ZaöRV, vol. 33, 1973, pp. 179 ff, p. 187; and Ch. Dominicé,

"Représailles et droit diplomatique", in Recht als Prozess und Gefüge.

Festschrift für Hans Huber zum 80 Geburtstag, Bern, 1981, p. 547.

49/ Discussing the ICJ judgment in the Case concerning United States

Diplomatic and Consular staff in Tehran (United States v. Iran) (I.C.J.

Reports, 1980, p. 3) proper criteria, Rölling stated that "it would have been

a good thing if the Court had had or taken the opportunity to make a clear

statement that those involved were persons against whom reprisals are

forbidden in all circumstances, according to unwritten and written law even if

the wrong against which a State wished to react consisted of the seizure of

its diplomats! The provisions of the Convention are so formulated that

’reprisals in kind’ are also inadmissible. It is possible to dispute the


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particular nature of diplomatic law as a "self-contained" regime, 50/ as

recognized by the International Court of Justice in the Hostages case. 51/

A few authors, however, question the existence of a rule of general

international law condemning otherwise not unlawful acts of coercion directed

against diplomatic envoys. 52/

(18) The rules of diplomatic law which are beyond the realm of countermeasures

available to an injured State are addressed in subparagraph (c). The

prohibition on resort to certain conduct by way of countermeasures is defined

in terms of the inviolability of protected persons, premises and property. It

extends to consular agents, premises, archives and documents - which are also

prime targets in situations of inter-State tension - to the extent that such

persons, premises and property enjoy inviolability under the legal regime

wisdom of this legal situation, but the arguments in favour of the current

law - total immunity of diplomats because of the great importance attached to

unhindered international communication - prevail". (B.V.A. Rölling, "Aspects

of the Case concerning U.S. Diplomats and Consular Staff in Teheran", in

Neth. YBIL 1980, p. 147.) The same opinion is held by Dominicé who wonders,

"Que deviendraient les relations diplomatiques, en effet, si l’Etat qui,

fût-ce à juste titre, prétend être victime d’un fait illicite, pouvait

séquester un agent diplomatique ou pénétrer dans les locaux d’une mission

en s’appuyant sur la doctrine des représailles?" (Ch. Dominicé,

"Observations ...", op. cit., p. 63.) L.A. Sicilianos, op. cit., p. 351,states that "il y a certainement un noyau irréductible du droit diplomatique

ayant un caractère impératif - l’inviolabilité de la personne des agents

diplomatiques, l’inviolabilité des locaux et des archives - qui est de ce

fait réfractaire aux contremesures. Il y a en revanche d’autres obligations

qui ne semblent pas s’imposer forcément en toute hypothèse et qui pourraient,

certes avec toute la précaution voulue, faire l’objet de contremesures

proportionnées".

50/ F. Lattanzi, Garanzie ..., op. cit., pp. 317-318; O.Y. Elagab,

op. cit., pp. 116 ff.

51/ In this regard, the Court expressed the following view: "[t]he rules

of diplomatic law, in short, constitute a self-contained régime which, on

the one hand, lays down the receiving State’s obligations regarding the

facilities, privileges and immunities to be accorded to diplomatic missions

and, on the other, foresees their possible abuse by members of the missions

and specifies the means at the disposal of the receiving State to counter any

such abuse". I.C.J. Reports, 1980, p. 3 at p. 40, para. 86.

52/ See D. Anzilotti, Corso di diritto internazionale pubblico,

vol. III, Rome 1915, p. 167, and, more recently, B. Conforti, Diritto

internazionale, Naples 1987, pp. 360-361.


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governing consular relations. 53/ Thus, subparagraph (c) is without

prejudice to the primary norms or the separate treaty regimes that govern

diplomatic and consular relations.

(19) An explicit reference to multilateral diplomacy was considered to be

unnecessary since representatives to international organizations are covered

by the reference to diplomatic agents. As for officials of international

organizations, no retaliatory step taken by a host State to their detriment

could ever qualify as a countermeasure since it would involve non-compliance -

not with an obligation owed to the wrongdoing State - but with an obligation

owed to a third party, namely the international organization concerned.

(20) Subparagraph (d) prohibits the resort, by way of countermeasures, to

conduct derogating from basic human rights. This prohibition, which is

dictated by fundamental humanitarian considerations, initially developed in

the context of the law of war since such considerations were most frequently

sacrificed as a result of the exceptional circumstances existing in time of

war. 54/ As early as 1880, the Institute of International Law attempted to

regulate reprisals in its Manual of the Laws of War on Land which provided

that such measures "must conform in all cases to the laws of humanity and

morality". 55/ The human suffering caused by reprisals during the

First World War led to the adoption of a rule prohibiting reprisals

against prisoners of war in the Geneva Convention of 1929. 56/ Since the

53/ See, for example, articles 31, 33 and 41 of the Vienna Convention on

Consular Relations, UNTS, vol. 596, p. 261.

54/ The development of humanitarian limitations to the right of adopting

reprisals is thoroughly illustrated by F. Lattanzi, Garanzie ..., op. cit.,

pp. 295-302.

55/ See resolutions of the Institute of International Law, Oxford

Session of 1880, The Laws of War on Land, articles 85 and 86.

56/ Article 2 of the Convention relative to the Treatment of Prisoners

of War, Geneva, 27 July 1929, LNTS, vol. 118, pp. 343-411. There is no

similar provision in the 1929 Convention concerning the wounded and sick.

However, it has been suggested that this omission was due to an oversight and

that, in any event, the Convention implicitly prohibits reprisals by requiring

respect for the Convention "in all circumstances" under article 25. "The fact

that this prohibition was not also inserted in 1929 in the Convention dealing

with the wounded and sick - not explicitly, that is to say, for it follows by

implication from the principle of the respect to which they are entitled - can

only have been due to an oversight. The public conscience having disavowed

reprisals against prisoners of war, that disavowal is a fortiori applicable to


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Second World War, reprisals against protected persons or property have also

been unanimously prohibited by the Geneva Conventions of 1949 57/ as well

as the Additional Protocol I thereto of 1977. 58/ Furthermore, the

absolute character of this prohibition is indicated in the Vienna Convention

on the Law of Treaties which expressly provides that the termination or

suspension of a treaty in response to a material violation shall not be

resorted to with regard "to provisions relating to the protection of the human

person contained in treaties of a humanitarian character, in particular to

provisions prohibiting any form of reprisals against persons protected by such

treaties". 59/

(21) In addition to the prohibition of belligerent reprisals, the development

of international humanitarian law is also significant in its recognition of

the existence of imprescriptible and inviolable rights conferred on

reprisals against military personnel who, like the wounded and sick, are

defenceless and entitled to protection." J. Pictet, Commentary to Geneva

Convention I for the amelioration of the condition of the wounded and sick in

armed forces in the field, Geneva 1952, p. 344.

57/ Article 46 of Geneva Convention I for the amelioration of the

condition of the wounded and sick in armed forces in the field, UNTS,

vol. 75, p. 31; article 47 of Geneva Convention II for the Amelioration of

the Condition of Wounded, Sick and Shipwrecked members of Armed Forces at Sea,UNTS, vol. 75, p. 85; article 13, para. 3, of Geneva Convention III relative

to the Treatment of Prisoners of War, UNTS, vol. 75, p. 135; article 33,

para. 3, of Geneva Convention IV relative to the Protection of Civilian

Persons in Time of War, UNTS, vol. 75, p. 287.

58/ Article 20 of Additional Protocol I of 8 June 1977 to the Geneva

Conventions of 12 August 1949, ILM, vol. 16, 1977, p. 1391.

59/ Article 60, paragraph 5 (UNTS, vol. 1155, p. 331). The doctrine

indicates that this limitation applies to the various instruments relating to

humanitarian law as well as human rights law. On the inapplicability of the

principle of reciprocity in case of violations of human rights treaty

obligations, see F. Lattanzi, Garanzie ..., op. cit., pp. 302 ff.;

L.S. Sicilianos, op. cit., pp. 352-358. Schachter is of the opinion that the

"treaties covered by this paragraph clearly include the Geneva Conventions for

the protection of victims of war, the various human rights treaties, and

conventions on the status of refugees, genocide and slavery" (O. Schachter,

"International Law in Theory and Practice. General Course in Public

International Law", Hague Rec., vol. 178, 1982-V, p. 181). The inviolability

of these rules by way of reprisal is also maintained by K. Zemanek,

"Responsibility of States: General Principles", in Enc. of Publ. Int. Law,

vol. 10, 1987, p. 371.


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individuals by international law. 60/ The requirement of humane treatment

based on the principle of respect for the human personality 61/ extends to

internal armed conflicts by virtue of common article 3 of the 1949 Geneva

Conventions as well as Additional Protocol II thereto of 1977. 62/

According to the commentary to the first Geneva Convention, this common

provision "makes it absolutely clear that the object of the Convention is a

purely humanitarian one ... and merely ensures respect for the few essential

rules of humanity which all civilized nations consider as valid everywhere and

under all circumstances and as being above and outside war itself." 63/

Thus, common article 3 prohibits any reprisals in non-international armed

conflicts with respect to the expressly prohibited acts 64/ as well as any

60/ See J. Pictet, Commentary to Geneva Convention I, op. cit.,commentary to article 7, p. 82, which states as follows:

"In the development of international law the Geneva Convention

occupies a prominent place. For the first time, with the exception of

the provisions of the Congress of Vienna dealing with the slave-trade,

which were themselves still strongly coloured by political aspirations,

a set of international regulations was devoted, no longer to State

interests, but solely to the protection of the individual. The

initiators of the 1864 and following Conventions wished to safeguard

the dignity of the human person, in the profound conviction that

imprescriptible and inviolable rights were attached to it even when

hostilities were at their height (citations omitted)."

61/ "The principle of respect for human personality, which is at the

root of all the Geneva Conventions, was not a product of the Conventions. It

is older than they are and independent of them." (J. Pictet, Commentary to

Geneva Convention I, op. cit., p. 39.)

62/ Protocol Additional to the Geneva Conventions of 12 August 1949, and

Relating to the Protection of Victims of Non-International Armed Conflicts

(Protocol II), ILM, vol. 16, 1977, p. 1442.

63/ J. Pictet, Commentary to Geneva Convention I, op. cit., p. 60.

64/ The first paragraph of common article 3 provides as follows:

"In the case of armed conflict not of an international character

occurring in the territory of one of the High Contracting Parties, each

Party to the conflict shall be bound to apply, as a minimum, the

following provisions:

(1) Persons taking no active part in the hostilities, including members

of armed forces who have laid down their arms and those placed hors de

combat by sickness, wounds, detention, or any other cause, shall in all


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other reprisal incompatible with the absolute requirement of humane

treatment. 65/ The requirement of humane treatment in non-international

armed conflicts applies to all protected persons without discrimination,

including foreign nationals notwithstanding the absence of a specific

reference to nationality in the non-discrimination clause contained in

paragraph 1 of common article 3. 66/

circumstances be treated humanely, without any adverse distinction

founded on race, colour, religion or faith, sex, birth or wealth,

or any other similar criteria.

To this end, the following acts are and shall remain prohibited at

any time and in any place whatsoever with respect to the above-mentioned

persons:

(a) violence to life and person, in particular, murder of all

kinds, mutilation, cruel treatment and torture;

(b) taking of hostages;

(c) outrages upon personal dignity, in particular humiliating and

degrading treatment;

(d) the passing of sentences and the carrying out of executions

without previous judgment pronounced by a regularly constituted court,

affording all the judicial guarantees which are recognized as

indispensable by civilized peoples."

65/ See, for example, J. Pictet, Commentary to Geneva Convention I,

op. cit., p. 55, which states as follows:

"Reprisals ... do not appear here in the list of prohibited acts.

Does that mean that reprisals, while formally prohibited under

article 46, are allowed in the case of non-international conflicts,

that being the only case dealt with in article 3? As we have seen, the

acts referred to under items (a) to (d) are prohibited absolutely and

permanently, no exception or excuse being tolerated. Consequently, any

reprisal which entails one of these acts is prohibited, and so, speaking

generally, is any reprisal incompatible with the ’humane treatment’

demanded unconditionally in the first clause of subparagraph (1)."

66/ See J. Pictet, Commentary to Geneva Convention I, op. cit., p. 56,

stating as follows:

"To treat aliens in a civil war in a manner incompatible

with humanitarian requirements, or to believe that one was

justified in letting them die of hunger or in torturing them,

on the grounds that the criterion of nationality had been

omitted, would be the very negation of the spirit of the Geneva

Conventions."


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(22) The recognition of essential rules of humanity and inviolable rights

which led to the prohibition of reprisals in time of international or internal

armed conflict led to similar restrictions on reprisals in time of

peace. 67/ The general character of the humanitarian limitation on

reprisals was recognized in the award in the Naulilaa case which stated that a

lawful reprisal must be "limited by the requirements of humanity and the rules

of good faith applicable in relations between States". 68/ Similarly, the

International Law Association in its 1934 resolution stated that in the

exercise of reprisals a State must "s’abstenir de toute mesure de rigueur qui

serait contraire aux lois de l’humanité et aux exigences de la conscience

publique". 69/ More specifically, the League of Nations Assembly’s debates

on the implementation of article 16 of the Covenant emphasized that the

economic measures to be applied in case of aggression should not endanger

humanitarian relations. 70/

(23) The inhumane consequences of a reprisal may be the direct result of

measures taken by a State against foreign nationals 71/ within its

territory or the indirect result of measures aimed at the wrongdoing State.

The following cases may be considered as examples of humanitarian limitations

on measures with direct consequences for foreign nationals in the territory of

the acting State. As early as 1888, following the violation by the

67/ See F. Lattanzi, Garanzie ..., op. cit., pp. 293-302; similarly

A. De Guttry, op. cit., pp. 268-271. After explaining that resort to one or

the other of the possible coercive measures depends on the choice of States,

Anzilotti noted that States are not absolutely free in their choice. He

listed a number of actions condemned by the laws of warfare, although

constituting a minus as compared to warfare itself, and concluded that these

actions were to be condemned a fortiori in peacetime (Corso di diritto

internazionale pubblico, vol. III, Rome, 1915, pp. 166-67).

68/ UNRIAA, vol. II, p. 1026.

69/ Article 6, paragraph 4, Ann. IDI, vol. 38, 1934, p. 709.

70/ League of Nations, Reports and Resolutions on the Subject of

Article 16 of the Covenant, 13 June 1927, pp. 11 ff.

71/ In this regard, the comment to article 905 of the Third Restatement

of the Law of Foreign Relations expresses the view that "Self-help measures

against the offending State may not include measures against the State’s

nationals that are contrary to the principles governing human rights and the

treatment of foreign nationals" (Restatement, op. cit., p. 381).


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United States of the 1880 Treaty on the establishment of Chinese nationals

(the "Chinese Exclusion Act"), China, while suspending performance of its

treaty obligations towards the United States, decided nevertheless to respect,

for reasons of humanity, the rights of United States nationals under Chinese

jurisdiction. 72/ More recently, during the Falkland-Malvinas crisis, the

United Kingdom froze Argentinean assets in the country, but with the specific

exception of the funds which would normally be necessary for "living, medical,

educational and similar expenses of residents of the Argentine Republic in the

United Kingdom" and for "payments to meet travel expenditures by residents of

the Argentine Republic leaving the United Kingdom". 73/

(24) With regard to humanitarian limitations on measures with indirect

consequences on the nationals of the target State, mention may be made of

the following examples. After the killing of 85 young people on 15 May 1979,

at Bangui, by the personal security forces of Bokassa, ruler of the Central

African Republic, France, in retaliation, suspended a financial cooperation

agreement 74/ with that country, but excluded from the measure financial

assistance in the fields of education, food and medicine. 75/ In

declaring, in 1986, a total blockade of trade relations with Libya by way of

countermeasures, the United States prohibited the export "to Libya of any

goods, technology (including technical data or other information) or services

from the United States except publications and donations of articles intended

72/ Foreign Relations Law of the United States 1889, p. 132.

73/ Notice of the Bank of England issued on 3 April 1982, in BYIL,

vol. 53, 1982, pp. 509 ff., at 511.

74/ Some authors are of the view that humanitarian considerations

prevent an injured State from terminating or suspending any part of a treaty

providing forms of economic assistance to the offending State with a view to

improving the conditions of a part of the latter’s population. See

A. Cassese, Il Diritto internazionale, op. cit., p. 271; and L. Boisson de

Chazournes, op. cit., Chapter III, Part A, Section 3, para. 3.3, p. 153.

Similarly, O.Y. Elagab, op. cit., p. 194, is of the opinion that consideration

should be given to the "factor of dependence and reliance" by examining

whether and to what extent measures have as their object commodities or

services that are vital to the well-being of the State against which the

measures are directed. This consideration would be of particular importance

in the case of measures directed against developing countries. However, not

all authors favour such a broad interpretation of the humanitarian restriction

on countermeasures. For example, see B. Conforti, op. cit., p. 360.

75/ Rousseau, Chronique, RGDIP, 1980, p. 364.


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to relieve human suffering, such as food, clothing, medicine, and medical

supplies intended strictly for medical purposes". 76/ Following the murder

of an Italian researcher in Somalia, the Foreign Affairs Committee of the

Italian Parliament approved, on 1 August 1990, the suspension of any

activities in Somalia "not directly finalized to humanitarian

assistance". 77/

(25) The fact that humanitarian considerations are taken into account by

States even in applying measures of mere retortion, in view of the fact that

they consider the interest infringed not to be legally protected, makes the

restriction for humanitarian reasons even more significant than it would be if

it were limited to reprisals. 78/ The general applicability of this

restriction is also a consequence of the character of countermeasures as

essentially a matter between the States concerned and of the need to ensure

that such measures have minimal effects on private parties in order to avoid

collective punishment. 79/

76/ AJIL, vol. 80, 1986, p. 630. A very similar provision is contained

in Executive Order No. 12722, by which the United States took measures against

Iraq following the invasion of Kuwait (text in AJIL, vol. 84, 1990, p. 903,

particularly Section 2 (b)).

77/ La Repubblica, 2 August 1990, p. 14.

78/ The prohibition of reprisals in time of war contained in the GenevaConventions does not necessarily extend to measures of retortion. See, for

example, the commentary to article 46 of Geneva Convention I, op, cit., p. 347

which, after recognizing the apparent desirability of prohibiting such

measures, states as follows at p. 342:

"What matters most, however, is that there should be no

infringement of the rules of the Convention, that is to say, no

interference with the rights of the persons protected,

considered as a minimum. In the case of benefits which go

beyond this minimum, it is admissible that a belligerent should

not agree to accord them except on a basis of reciprocity.

There might even be a risk of discouraging the granting of suchbenefits, if it were insisted that they should in no case be

subject to retortion. It therefore appears more prudent to

conclude that article 46 applies only to reprisals as defined

at the beginning of the commentary on the present article."

79/ The collective punishment aspect of prohibited reprisals is

discussed indirectly in the commentary to common article 3 of Geneva

Convention I, op. cit., p. 54, as follows: "The taking of hostages, like

reprisals, to which it is often the prelude, is contrary to the modern idea of

justice in that it is based on the principle of collective responsibility for

crime. Both strike at persons who are innocent of the crime which it is

intended to prevent or punish."


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(26) The humanitarian constraint on the ability of an injured State to resort

to countermeasures is essentially determined by the fundamental requirements

of humane treatment. As a result of its unprecedented development in recent

years, the law of human rights provides a minimum standard of humane treatment

by identifying certain inviolable human rights which may not be suspended or

derogated from even in time of war or other public emergency. 80/ In this

regard, the International Covenant on Civil and Political Rights recognizes

the inviolability of certain rights by excluding them from the scope of

application of the claim authorizing States Parties to derogate from their

obligations under the Covenant in case of "public emergency which threatens

the life of the nation". 81/ The Covenant excludes derogations from

article 6 on the right to life, article 7 on the right not to be subjected to

torture or to cruel, inhuman or degrading treatment or punishment, article 8

on the right not to be held in slavery or in servitude, article 11 on the

right not to be imprisoned merely on the ground of inability to fulfil a

contractual obligation, article 15 on the right flowing from the principle

nullum crimen sine lege, nulla poena sine lege, article 16 on the right to

recognition as a person before the law, and article 18 on the right to freedom

of thought, conscience and religion. Regional human rights instruments, such

as the American Convention on Human Rights 82/ and the European Convention

on Human Rights, 83/ as well as doctrine 84/ provide further support for

80/ See, inter alia, G. Morelli, Nozioni ..., op. cit., p. 362;

P. Reuter, op. cit., p. 463; W. Riphagen, Fourth Report, op. cit., p. 17,

paras. 88-89; Ch. Dominicé, op. cit., p. 62; E. Zoller, "Quelques réflexions

sur les contre-mesures en droit international public", in Etudes Colliard,Paris, 1984, p. 376; O. Schachter, "Self-Help in International Law: US Action

in the Iranian Hostages Crisis", in Journal of International Affairs, vol. 37,

1983-1984, pp. 231-233; A. De Guttry, op. cit., p. 271.

81/ Article 4, International Covenant on Civil and Political Rights,

UNTS, vol. 999, p. 171.

82/ Article 27 of the American Convention on Human Rights prohibits the

suspension of certain rights, even in time of war or public emergency, namely

the right to juridical personality (art. 3), the right to life (art. 4), the

right to humane treatment (art. 5), freedom from slavery (art. 6), the right

not to be subjected to ex post facto laws (art. 9), freedom of conscience and

religion (art. 12), the rights of the family (art. 17), the rights of the

child (art. 19), the right to nationality (art. 20), the right to participate

in government (art. 23), "or of the other judicial guarantees essential for

the protection of such rights" (ILM, vol. 9, 1970, p. 101).

83/ Article 15 of the European Convention on Human Rights prohibits

derogations, even in time of war or other publi